How Do You Estimate Future Damages?
Hilary
estimating future expenses that might result from knee replacement
surgery at an age younger than he and everyone else advises (but that
he admits may be necessary for quality-of-life issues). I haven't
heard back from him and since I never dealt with anything like this, I
want to know if this is something I should be paying him to tell me.
(I need to estimate damages for the joint case management conference
plan.) Thank you.
Mike Jacobs
> I asked my orthopedic doctor's assistant how I would go about
> estimating future expenses that might result from knee replacement
> surgery
"You" _don't_ estimate those anticipated future expenses. You hire an
_expert_witness_ who estimates them and will testify about them at
trial. The reason you are puzzled and cannot figure out how to
estimate them is that you, as the patient, are _not_ an expert in that
medical field, and thus are _not_ legally competent to testify to
those opinions as a sworn witness at your own trial. Only your
doctor, or some other expert with similar qualifications, can.
> at an age younger than he and everyone else advises
So, waidaminit. Lemme see if I got this right. Your ortho _has_
given you an estimate of WHEN he expects you to need future Rx, and
_has_ estimated its cost, but you want to REJECT that opinion, and
figure out how much it would cost you in the event you needed such
future Rx much _sooner_ than your doc "and everyone else" has
uniformly told you? And, despite the unanimous opinion to the
contrary, you want to be able to get up on the witness stand
_yourself_ and say, under oath, "My doctor, together with the entire
medical community, is wrong; I could wind up needing this new knee
tomorrow, not in 20 years, so you ought to pay me $xxx right now just
in case." Is that what you're saying?
I think I understand you, but, I also think I will never understand
you.
> (but that
> he admits may be necessary for quality-of-life issues).
If you have to coax an "admission" from YOUR OWN EXPERT he's not going
to do you much good. Your jury will be able to tell that your are
having to struggle with him to get him to grudgingly agree with you,
like pulling teeth. If they can see that you are putting words in his
mouth for him, they won't like it. You need, as a testifying expert,
someone who is _already_ inclined to see things from _your_ POV and
who believes in and will advocate for that position you want him to
take at trial, assuming, of course, that he can do so in good faith,
with sufficient factual support, and that he is not taking an outlying
position contrary to the entire body of opinion in his field of
expertise. Such a one-off, far-outside-the-norm expert whose opinion
is not supported by current scientific knowledge is, instead, likely
to be banned from testifying, under the standards of Daubert v.
Merrill Dow Pharmaceuticals, a SCOTUS case I'm sure you can find on
your own thru Google or other search engine, and which has been widely
discussed and cited.
> I haven't
> heard back from him and since I never dealt with anything like this, I
> want to know if this is something I should be paying him to tell me.
Only if he expects payment for the work he does for you. If he's
working for you for free, though, perhaps he intends to limit his free
work to actually treating your medical condition (for which he
probably obtains some form of reimbursement from the government) and
is not willing to spend time working as your (unpaid) professional
consultant for litigation purposes, a matter that your health
insurance and/or welfare benefits does _not_ cover. My guess is, YES
he wants to be paid. But, have you ASKED? It doesn't hurt to ask.
> (I need to estimate damages for the joint case management conference
> plan.)
Waidaminit again. This knee-replacement-surgery claim is somehow
connected to your LANDLORD-TENANT DISPUTE over alleged failure to make
reasonable accommodations for your protected-class PTSD hidden
disability, the one we've been talking about in various threads for 6
months or so now? Just how do you propose to tie in causation of
your knee problem with having your lease terminated (at your request,
remember)? And, why is the (presumed) fact you need knee surgery the
landlord's fault?
> Thank you.
You're welcome. Just what we needed; when things were starting to
get boring and predictable around here, Hilary opens a whole new can
of worms for us to explore! 8*)
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Robert Bonomi
You apparently acknowledge that you would have needed knee replacement surgery
_without_ the {whatever it was} that will make said surgery necessary/desirable
earlier.
Establishing the 'cost' of that accellerated time frame is relatively easy.
you need to know, or estimate:
1) what the total cost of the surgury, and directly related expenses is.
2) approximately _when_ it would have been necessary/desirable assuming
{whatever it was} had not happened.
3) approximately _when_ it *will* become necessary/desirable given that
{whatever it was} did happen.
>From those three things, you can calculate the 'net present value' of the
expense amount (1) at date (2) in the future. You can similarly calculate
the present value of expense amount (1) at date (3) in the future. The
amount by which the second figure exceeds the first one is the cost you're
looking for.
grendal
>
> Waidaminit again. � This knee-replacement-surgery claim is somehow
> connected to your LANDLORD-TENANT DISPUTE over alleged failure to make
> reasonable accommodations for your protected-class PTSD hidden
> disability, the one we've been talking about in various threads for 6
> months or so now? � Just how do you propose to tie in causation of
> your knee problem with having your lease terminated (at your request,
> remember)? � And, why is the (presumed) fact you need knee surgery the
> landlord's fault?
>
Mike,
You mean you didn't see this coming?
Sorry, but I believe someone who posted here kind of put the idea in
her head that she should be able to collect damages on her bad knee.
A couple of months ago, Hilary was posting that she wanted to see if
she could medicare to cover the costs for some unapproved treatment.
Going from memory, I thought she was thinking about using an MRI
machine as part of a treatment program. (MRI time is still $$$)
The issue was that she used walking as a way to alleviate stress and
all of the extra stress she endured by going through the trial meant
that she was now having knee problems.
Since you're the lawyer who handles personal injury claims, do you
think you can easily explain why this line of reasoning isn't going to
fly?
-G
Mike Jacobs
> On Oct 28, 10:24 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > Waidaminit again. This knee-replacement-surgery claim is somehow
> > connected to your LANDLORD-TENANT DISPUTE
> > And, why is the (presumed) fact you need knee surgery the
> > landlord's fault?
>
> Mike,
> You mean you didn't see this coming?
No, I don't think Hilary ever told us before that she was trying to
_connect_ her knee problems with the landlord dispute. If she did, I
missed it.
> Sorry, but I believe someone who posted here kind of put the idea in
> her head that she should be able to collect damages on her bad knee.
I have no idea who that might be.
> A couple of months ago, Hilary was posting that she wanted to see if
> she could medicare to cover the costs for some unapproved treatment.
> Going from memory, I thought she was thinking about using an MRI
> machine as part of a treatment program. (MRI time is still $$$)
I remember that discussion, vaguely, but didn't think it had anything
to do with her landlord case. People _do_ post to MLM about more than
one, unrelated issues sometimes. Having a dispute with Medicare over
coverage of some treatment is totally separate from having a dispute
with the landord over terminating your lease and evicting you.
> The issue was that she used walking as a way to alleviate stress and
> all of the extra stress she endured by going through the trial meant
> that she was now having knee problems.
Pretty remote connection, IMO. Not likely to fly. Creative, though.
> Since you're the lawyer who handles personal injury claims, do you
> think you can easily explain why this line of reasoning isn't going to
> fly?
I refer anyone interested in such an explanation to the discussion of
"proximate causation" I just posted, a minute ago, on the thread Mr.
Silence DoGood began about the McDonald's Hot Coffee case, in the
context of our debate over whether a restaurant with a drive-up window
that refuses service to pedestrians has any duty to a prospective
customer on foot who gets killed crossing the street to a competitor's
joint after being refused service at the drive-up-only window.
To make a long story short, such a restaurant proprietor defendant has
no duty to prevent that kind of harm, nor does Hilary's landlord IMO
have any duty to prevent Hilary from walking so much as her response
to stress that she got herself a bad knee as a result.
However, Hilary absolutely SHOULD NOT take that personal opinion of
mine as legal advice. If SHE thinks there is a proximate causal
connection, then she ought to let the judge (and/or jury) in her case
make that decision. She is the sole captain of her ship in her pro se
case I'm not telling her what to do, and she knows that.
Cy Pres
<im_g...@hotmail.com> wrote:
>A couple of months ago, Hilary was posting that she wanted to see if
>she could medicare to cover the costs for some unapproved treatment.
>Going from memory, I thought she was thinking about using an MRI
>machine as part of a treatment program. (MRI time is still $$$)
>The issue was that she used walking as a way to alleviate stress and
>all of the extra stress she endured by going through the trial meant
>that she was now having knee problems.
I'm sure Mike will have a more lengthy and well thought out response
to this, but this seems like a highly attenuated chain of causation
which is unlikely to fulfill the foreseeability element of proximate
cause. If this chain of causation would hold up, any time anyone
wronged you in any way, they would be on the hook for any bad thing
that ever happened to you in the future that could be said to be
connected to the original tort.
At least at first blush, the causation appears less proximate than
that in Palsgraf.
There are arguments to the contrary, of course, such as that, for
example, if you injure someone, and they are subsequently further
injured in the ambulance ride, or by malpractice at the hospital where
they get medical treatment, the possibility of an injured person
suffering further injury on an ambulance ride or at the hospital is
reasonably foreseeable enough to support liability.
However, in this case, the result seems to be pretty remote from the
cause, and the specific physical stress of walking not something that
would obviously result from emotional stress.
Hilary
>
> Waidaminit again. � This knee-replacement-surgery claim is somehow
> connected to your LANDLORD-TENANT DISPUTE over alleged failure to make
> reasonable accommodations for your protected-class PTSD hidden
> disability, the one we've been talking about in various threads for 6
> months or so now? � Just how do you propose to tie in causation of
> your knee problem with having your lease terminated (at your request,
> remember)? � And, why is the (presumed) fact you need knee surgery the
> landlord's fault?
Hopefully, you will never know what it is like to be faced with
unexpected homelessness. When I found myself in that position in
August, 2007, I was offered a place to stay three states south of
Pennsylvania. Accepting the offer not only gave me a roof over my
head; it saved face. By God's grace, I did not originally come from a
socioeconomic background where homeless shelters were a fact of life.
It was not frivolous to take advantage of this offer of a place to
stay.
I drive a fifteen year-old beater truck without cruise control.
Although I gave away nearly all my possessions when my apartment was
taken from me, I was given some household items in the other state.
Totally, in regard to the period of discrimination I allege, I made a
total of 8 one-way (or four two-way) trips back and forth. My
orthopedic surgeon, primary care physician, and a friend/radiologist
all agree the condition of my knee was aggravated by the strain of
eight 350-mile-+ trips. As for causation, these trips would not have
occurred, nary a one, if I had been given the same status as one hell
of a t.v. set.
Hilary
wrote:
>
> You apparently acknowledge that you would have needed knee replacement surgery
> _without_ the {whatever it was} that will make said surgery necessary/desirable
> earlier.
No. I had torn a meniscus in my career as an unpaid grunt. I (then)
was still in my 40's, and I'm a vegetarian and very active, and the
doctors all said You'll Get Over It. Although I am fast becoming more
bedraggled and aged-looking, I still don't seem crippled by pain to
the naked eye. ASICS have helped a great deal; I would rather hang
myself than become immobile.
> Establishing the 'cost' of that accellerated time frame is relatively easy.
> you need to know, or estimate:
> � � 1) what the total cost of the surgury, and directly related expenses is.
> � � 2) approximately _when_ it would have been necessary/desirable assuming
> � � � �{whatever it was} had not happened.
> � � 3) approximately _when_ it *will* become necessary/desirable given that
> � � � �{whatever it was} did happen.
>
> >From those three things, you can calculate the 'net present value' of the
>
> expense amount (1) at date (2) in the future. � You can similarly calculate
> the present value of expense amount (1) at date (3) in the future. �The
> amount by which the second figure exceeds the first one is the cost you're
> looking for.
Thank you. I am fortunate (*really* fortunate) to be covered by
Medicare. (And let me say Thank You to God for this here publicly.)
I'm not after mad-money from the bastard-defendants. I don't want a
Mercedes Benz. What I want is SOME punitive damage that will be a
precedent for other future PTSD complainants, that says, Here's What
Happens When You Toss a Human Being Out in Favor of a Really Good
Sound System.
If I were to ask for something I don't deserve, I would be hurting my
own cause; you can do what I've been doing only if you really believe
in something greater than money. My pipe dream is for the judge to
make these bastards build a subsidized housing complex for
psychologically disabled or abused people who can be rehabilitated by
peace.
Mike Jacobs
> On Oct 28, 10:00 pm, bon...@host122.r-bonomi.com (Robert Bonomi) wrote:
>
> > You apparently acknowledge that you would have needed knee replacement surgery
> > _without_ the {whatever it was} that will make said surgery necessary/desirable
> > earlier.
>
> No. I had torn a meniscus in my career as an unpaid grunt. I (then)
> was still in my 40's, and I'm a vegetarian and very active, and the
> doctors all said You'll Get Over It. Although I am fast becoming more
> bedraggled and aged-looking, I still don't seem crippled by pain to
> the naked eye. ASICS have helped a great deal; I would rather hang
> myself than become immobile.
Now I'm even more confused than I was _before_ you answered Mr.
Bonomi's question.
Paraphrasing what he asked, let me ask: "Why is the DEFENDANT LANDLORD
in your FHA case responsible for your prospective future knee
replacement surgery?" You have to be able to answer that question
DIRECTLY and CONVINCINGLY if you plan on claiming such damages as part
of your case. So far, I haven't seen you do that.
> > Establishing the 'cost' of that accellerated time frame is relatively easy.
> > you need to know, or estimate:
> > 1) what the total cost of the surgury, and directly related expenses is.
> > 2) approximately _when_ it would have been necessary/desirable assuming
> > {whatever it was} had not happened.
> > 3) approximately _when_ it *will* become necessary/desirable given that
> > {whatever it was} did happen.
> >
> > From those three things, you can calculate the 'net present value' of the
> > expense amount (1) at date (2) in the future. You can similarly calculate
> > the present value of expense amount (1) at date (3) in the future. The
> > amount by which the second figure exceeds the first one is the cost you're
> > looking for.
That's the HOW, but it leaves unanswered the WHY question - why is any
of this Defendant Landlord's responsibility?
> Thank you. I am fortunate (*really* fortunate) to be covered by
> Medicare.
You do know that you will have to reimburse Medicare for the cost of
your care, if you DO collect damages for past _or_future_ medical
bills as part of your verdict award, right? OTOH if you are looking
for FUTURE damages, the defense may well be able to argue at trial
that you should not get ANYTHING for that, because medicare WILL cover
the cost for you. I don't know how PA law works on this issue, but
YOU had better find out, and fast, if you intend to make such a claim
for future medical damages.
> (And let me say Thank You to God for this here publicly.)
Yet, some people still say Government-Run Health Care Insurance won't
work.
> I'm not after mad-money from the bastard-defendants.
Sorry, that's EXACTLY what it sounds like you are after.
There are only TWO kinds of remedies the Court can even possibly give
you:
(1) an award of money damages (cash, moolah, fungible legal tender) or
(2) specific, injunctive relief ORDERING the defendant to do or
refrain from doing some thing.
Money is fungible. Once you get it, it is YOURS to do with whatever
you wish. You can use it to build a Retirement Home for PTSD
Sufferers, if that is your wish, or you can buy a fleet of Mercedeses
with it. Just how gullible do you think the factfinder is going to
be, if you make a statement like that?
> I don't want a Mercedes Benz. What I want is SOME punitive damage
Punitive damages = mad money.
Punies are damages you get awarded _above_and_beyond_ the amount
needed to COMPENSATE you for your actual injuries (if any), to PUNISH
defendant for conduct that is OUTRAGEOUS and COMPLETELY outside the
bounds of human decency. Putting aside the issue of whether you are
likely to be able to prove up a _case_ for punitive damages, let's
assume you DO get them. If you do, punies ARE completely "mad money"
for you. You don't have to use those funds to pay for doctors
(that's what your COMPENSATORY damages are given to you for) or to
reimburse yourself for lost wages (ditto) or even to assuage your pain
and suffering caused by the defendant (ditto - ALL of those elements
are part of your COMPENSATORY damages). Rather, punies are YOURS to
do with as you wish - buy a Mercedes, move to Tahiti, or build a
sanatarium for PTSD sufferers. There are NO STRINGS ATTACHED to such
an award, IF you get it. Which means, the jury (or judge as
factfinder - I still don't know if you're in line for a jury trial)
will look VERY skeptically at any claim that "I'm going to use this
money to build my dream PTSD hostel to share with the world's PTSD
sufferers."
> that will be a precedent for other future PTSD complainants,
If so, it will be "precedent" only in the "widely-publicized bell-
ringer" sense and therefore the "inducing-in-potential-defendants-the-
fear-of-a-likely-verdict-amount-in-similar-cases" sense, not as
"precedent" in any legal sense of course. I grant you, cases which
have awarded punitive damages to victims of, e.g. exploding Ford
Pintos (whose gas tanks routinely ruptured, and burned up the victims,
in otherwise-survivable low-speed rear-end collisions, due to lack of
a $5 plastic shield over the tank which Ford execs consciously omitted
to save money, indicating they valued saving a few bucks over
condemning many of their customers to a gruesome death) certainly made
Ford, _and_ other carmakers, sit up and take notice, and their fear of
exposure to similar large verdicts in future cases made them all
improve their products accordingly. But, each FUTURE claimant still
has to prove that HIS defendant is liable to HIM, based on his own
specific facts.
> that says, Here's What
> Happens When You Toss a Human Being Out in Favor of a Really Good
> Sound System.
Good luck with that. You will have to prove up FACTS that show the
defendants acted callously, even when seen from THEIR perspective, not
just from yours. But we've already beaten that dead horse many times
on MLM in a variety of threads, and I won't revisit the issue here.
> If I were to ask for something I don't deserve, I would be hurting my
> own cause;
I'm glad you recognize that, which is why I'm trying to urge you to
THINK FIRST before you claim punitive damages.
> you can do what I've been doing only if you really believe
> in something greater than money.
Sorry, that sounds really cynical to me as an unbiased observer, since
what you would be asking for IS IN FACT money.
"I believe in something greater than money, so give me LOTS of money
to punish the defendant, above and beyond the amount of money you find
I need to be given to compensate myself for my actual injuries, and
we'll call it even."
THAT'S WHAT IT SOUNDS LIKE to the jury when you say that, Hilary.
> My pipe dream is for the judge to
> make these bastards build a subsidized housing complex
The Judge will not ORDER the defendants to do that. But if you get an
AWARD OF DAMAGES in sufficient amount, the defendants will PAY YOU
that money, and you can then use YOUR money to do that. If so, it
will be YOUR choice; no one will ORDER you, OR defendant, to do that
with the money.
> for
> psychologically disabled or abused people
Isn't that what a sanatarium, or mental hospital, already is, or is
supposed to be?
A relaxing, peaceful, comforting, close-to-nature environment with
caring attendants, seeking to heal or at least assuage psychological
wounds by restoring harmony and providing peace and hope?
> who can be rehabilitated by peace.
That's a great idea in theory, but, just a thought - isn't it likely
that the same goals were in the minds of the caring benefactors who
created the current concept of a mental hospital to replace the awful,
horrible warehousing of insane and disabled people that had been the
norm for millennia before the enlightened concepts of modern
psychology came along? And, haven't those modern attempts at
enlightened care also been dragged down by the day-to-day realities of
what they are trying to accomplish? Isn't it likely that many of the
individuals who would qualify for admission to this rehabilitation
complex you envision, would be _so_ disturbed that they themselves
would MAKE NOISE (scream, bang on things, etc.) and thus disturb the
peace of OTHER residents of the complex? What would you do about
THAT?
Which gets us back to your ORIGINAL situation, in the housing complex
where you formerly resided. Your "noisy" neighbor was there because
SHE, TOO, was (I presume) a qualified, disabled individual entitled to
a government subsidized living unit with the accommodations SHE needed
to deal with HER disability. She had just as much right to be in that
apt. as you did to be in yours. But (as you yourself have told us,
many months ago) even though her noise levels were NOT UNREASONABLE by
any OBJECTIVE standards (as shown by the fact that no one else nearby
complained about them), you SUBJECTIVELY found her TV noise
intolerable because of your personal HYPERSENSITIVITY to such sounds
due to YOUR disability. Did I state that correctly?
I'm _not_ going to suggest what the answer should be - that's YOUR
job, as plaintiff, just as it was YOUR job in the first place, when
you made your original request for the landlord to provide a
reasonable accommodation for YOUR mental health needs. But, you need
to be ready at trial to answer the question, WHAT ELSE could the
landlord have done under the circumstances, other than what he did,
and WHY would that alternative course of action have been MORE
reasonable than what he actually did? And, DID YOU ASK back then,
that he take that alternative action?
_IF_ (and only if) you can build a case that shows the landlord
callously disregarded your needs, IN SPITE OF your offering what would
have been a more reasonable accommodation, and instead he chose to
"Toss a Human Being Out in Favor of a Really Good Sound System" as you
say, THEN you may have built a case for punitive damages. Good luck,
Mike
> Punies are damages you get awarded _above_and_beyond_ the amount
> needed to COMPENSATE you for your actual injuries (if any), to PUNISH
> defendant for conduct that is OUTRAGEOUS and COMPLETELY outside the
> bounds of human decency. Putting aside the issue of whether you are
> likely to be able to prove up a _case_ for punitive damages, let's
> assume you DO get them. If you do, punies ARE completely "mad money"
> for you. You don't have to use those funds to pay for doctors
> (that's what your COMPENSATORY damages are given to you for) or to
> reimburse yourself for lost wages (ditto) or even to assuage your pain
> and suffering caused by the defendant (ditto - ALL of those elements
> are part of your COMPENSATORY damages). Rather, punies are YOURS to
> do with as you wish - buy a Mercedes, move to Tahiti, or build a
> sanatarium for PTSD sufferers. There are NO STRINGS ATTACHED to such
> an award, IF you get it. Which means, the jury (or judge as
> factfinder - I still don't know if you're in line for a jury trial)
> will look VERY skeptically at any claim that "I'm going to use this
> money to build my dream PTSD hostel to share with the world's PTSD
> sufferers."
Would it be possible to set up some sort of a "contract" thing that says
"if I'm awarded money above and beyond $X, it will go towards the Acme
Trust Fund for Orphans and Widows of Left-Handed Gay Vets Who Were 'Born
on the Fourth of July'" before even filing (or going to trial) where the
person would be truly held to the 'it's not about the money'? Or would
such not be enforceable? I'm thinking of something like how a plea
bargain works where it's basically a promise from the DA but how it's
not a binding contract in that the judge could still sentence the
defendant to anything he wanted (or, in this case, where the plaintiff
could still do anything he/she wanted with the money regardless of prior
promises. And yes, I realize a plea bargain isn't a promise on the part
of the judge and that's why it's not binding on him. But it's the
closest analog I could come up with.)
grendal
[SNIP]
> Which gets us back to your ORIGINAL situation, in the housing complex
> where you formerly resided. � Your "noisy" neighbor was there because
> SHE, TOO, was (I presume) a qualified, disabled individual entitled to
> a government subsidized living unit with the accommodations SHE needed
> to deal with HER disability. �She had just as much right to be in that
> apt. as you did to be in yours. �But (as you yourself have told us,
> many months ago) even though her noise levels were NOT UNREASONABLE by
> any OBJECTIVE standards (as shown by the fact that no one else nearby
> complained about them), you SUBJECTIVELY found her TV noise
> intolerable because of your personal HYPERSENSITIVITY to such sounds
> due to YOUR disability. � Did I state that correctly?
>
While this describes the complaint against the apartment complex, was
the State Agency dropped from the lawsuit?
> I'm _not_ going to suggest what the answer should be - that's YOUR
> job, as plaintiff, just as it was YOUR job in the first place, when
> you made your original request for the landlord to provide a
> reasonable accommodation for YOUR mental health needs. �But, you need
> to be ready at trial to answer the question, WHAT ELSE could the
> landlord have done under the circumstances, other than what he did,
> and WHY would that alternative course of action have been MORE
> reasonable than what he actually did? �And, DID YOU ASK back then,
> that he take that alternative action?
>
And that's the $64,000.00 question.
Actually there's a bit more to Hilary's burden.
She will have to show that the Complex's actions were in fact not
reasonable.
In the building's defense, they just have to show that their actions
were in fact a reasonable accommodation. (Under the circumstances.)
Remember that while Hilary will use quotes like 'tossing me out on the
street', the building will show that they did not take such an action.
And what they did do was in response to Hilary's actions and claims.
> _IF_ (and only if) you can build a case that shows the landlord
> callously disregarded your needs, IN SPITE OF your offering what would
> have been a more reasonable accommodation, and instead he chose to
> "Toss a Human Being Out in Favor of a Really Good Sound System" as you
> say, THEN you may have built a case for punitive damages. �Good luck,
Ok, so how would Hilary claim punitive damages?
Wouldn't Hilary have to show that the building totally disregarded the
law and her rights as a protected class member?
While I cut it to keep the length short, Mike does point out how
Hilary will be perceived. While Hilary views herself as a 'champion'
of all those who are unjustly persecuted by their handicap, Mike's
analysis is pretty much spot on. The reason I probably harp on this
issue so much is that I'm a little too familiar with Clinical
Depression and the FHA. If you encourage Hilary, you feed in to her
delusion.
Hilary is already agonizing over this case and she has become so
focused on the case that it has increased her levels of depression,
paranoia, anger, and anxiety. She will lose and when that happens, how
do you think she'll feel? More paranoid and distrustful of others? An
increased level of depression? Or worse?
And no one has really told her how bad it can get during the
deposition. If the defense attorney doesn't want to play nice, the
deposition can break her. Assuming she does really suffer from
clinical depression. You don't have to be a psychiatrist to see that.
Any competent attorney can easily break Hilary. Its unfortunate that
while there are some posters here who like to charge at windmills, in
Hilary's case, you have to consider her mental illness. This isn't a
hobby. Hilary has fixated on this and made it the focus of her life.
What Bob and others probably don't realize is that I do believe Hilary
does suffer from Clinical Depression. I believe that she is a member
of the protected class. I believe that Hilary fixated on the noise
issue and that it really became a problem for her. I understand and
can relate to Hilary more than she realizes. But I also believe that
Hilary is harming herself physically and mentally by pursuing this
case. I also believe that unless your blunt and to the point, Hilary
will suffer from selectively listening to you and will not grasp the
danger this case represents to her.
While a physician has certain ethical obligations, I have to ask, does
a lawyer?
Sure, the lawyers here are trying to help and explain the legal
system. They are not Hilary's lawyer so that certain ethics don't
apply. But even still, what should a lawyer say? Just answer the
legal question?
But shouldn't they be doing more to help Hilary understand the
difficulties and pain she's going to put herself through?
I think Mike is starting to drive his points home, but is it enough?
Bob
<im_g...@hotmail.com> wrote:
[snip]
>What Bob and others probably don't realize is that I do believe Hilary
>does suffer from Clinical Depression. I believe that she is a member
>of the protected class. I believe that Hilary fixated on the noise
>issue and that it really became a problem for her. I understand and
>can relate to Hilary more than she realizes. But I also believe that
>Hilary is harming herself physically and mentally by pursuing this
>case. I also believe that unless your blunt and to the point, Hilary
>will suffer from selectively listening to you and will not grasp the
>danger this case represents to her.
>
>While a physician has certain ethical obligations, I have to ask, does
>a lawyer?
>Sure, the lawyers here are trying to help and explain the legal
>system. They are not Hilary's lawyer so that certain ethics don't
>apply. But even still, what should a lawyer say? Just answer the
>legal question?
>
>But shouldn't they be doing more to help Hilary understand the
>difficulties and pain she's going to put herself through?
Doctors and lawyers both have ethical obligations. Although I haven't
studied a doctor's obligations, my assumption is a doctor has to act
competently from a medical point of view. A lawyer's obligation is
similar. Generally, a lawyer shouldn't advise a client from a
personal or business perspective, only from a legal one. It is the
client's responsibility to make personal and/or business decisions.
Naturally, some lawyers may transgress that boundary, but it can be a
dangerous thing to do. In Hilary's case, it might be particularly
dangerous because in some ways it puts the lawyer in the position of
being Hilary's doctor. The better course of action for the lawyer
would be to advise Hilary to see her doctor about the impact of
litigation on her mental health. (Hey, some lawyers would be advised
to see their own doctors about the impact of litigation on *their*
mental health. :-) ) This is not an abdication of the lawyer's
responsibility but a recognition that the lawyer is no more qualified
than any other lay person to advise the client on medical issues.
Mike Jacobs
> On Nov 13, 10:47�am, Mike Jacobs <mjacobs...@gmail.com> wrote:
> [SNIP]
> > intolerable because of your personal HYPERSENSITIVITY to such sounds
> > due to YOUR disability. � Did I state that correctly?
>
> While this describes the complaint against the apartment complex, was
> the State Agency dropped from the lawsuit?
IIRC Hilary told us last spring that the state agency defendant _was_
dropped from the case, as the result of the preliminary Order the
District Judge entered (as required by PA law even before serving the
papers on the State agency defendant), in making his sua sponte
threshold determination whether the State agency had Qualified
Immunity.
If that was not the outcome of that part of the case, and if those
issues still remain viable, then yes, the above discussion was
intended only to consider the grounds of her complaint against the
landlord defendant. If you really want to know what actually
happened, I suppose there are more than enough clues publicly posted
here over the last few months so that you could go to PACER and look
up the actual case file yourself - it is publicly available
information.
> > I'm _not_ going to suggest what the answer should be - that's YOUR
> > job, as plaintiff,
<snip>
> > DID YOU ASK back then,
> > that he take that alternative action?
>
> And that's the $64,000.00 question.
I'm not asking her to tell us HERE, unless she wants to. And I'm not
suggesting what her answer should be. But, she DOES have to answer
it, to the satisfaction of the factfinder, if she hopes to win at
trial, so this is what she should be thinking about _now_ as she
begins to _prepare_ her case for eventual trial. Keeping in mind, of
course, that if _settlement_ is really her ultimate goal (as a result
of her being terrified of trial, perhaps), she paradoxically will only
have a realistic chance to get the defendants to _agree_ to a
settlement if she convinces them that she _does_ have all her ducks in
a row and has a substantial chance of winning at trial. Sort of like
the "deterrence" theory of superpower diplomacy - the surest way to
keep the peace vs. another superpower is to have enough might in your
arsenal to blow the other side to kingdom come (although I note that
this theory doesn't work against guerilla insurgencies, never has, and
never will. You can't win a run-and-hide war against the home team).
> Actually there's a bit more to Hilary's burden.
> She will have to show that the Complex's actions were in fact not
> reasonable.
Agreed. I'm simply suggesting that one of the many things she needs
to focus her efforts on is, how to prove up that essential element of
her case.
> In the building's defense, they just have to show that their actions
> were in fact a reasonable accommodation. (Under the circumstances.)
Agreed. And although we don't _know_ what their arguments will
actually be, many posters here have anticipated what they are likely
to be - which is what Hilary needs to consider, so she will know (1)
what kind of questions to ask the other side in discovery, and (2)
what kind of questions to prepare for her eventual cross-examination
of the defense witnesses, either at trial or at deposition (if she
decides, _after_ receiving and reviewing their written discovery
responses, that depositions would help her fill in any missing gaps in
her proof, or get a better handle on the defense theory of the
case). As I believe Sun Tzu points out in The Art Of War (I'm
paraphrasing, but I think he was the first one to think of this and
write it down), to defeat an enemy you must _know_ him so thoroughly
that you can anticipate his moves before he does.
> Remember that while Hilary will use quotes like 'tossing me out on the
> street', the building will show that they did not take such an action.
> And what they did do was in response to Hilary's actions and claims.
I agree Hilary has to enable herself to come out of her own way of
looking at the case and _really_see_ the case from the _other_ side's
perspective - call it playing Devil's Advocate or what you will, this
does not mean she is abandoning her conviction that her _own_ view is
the right one, but rather it is the essential first step toward
_understanding_ the defense view SO SHE CAN DEFEAT IT. If she
doesn't even understand where the defense is coming from - especially
if she doesn't even TRY to - she will be blindsided, sandbagged, and
thoroughly trounced, when the case gets to trial. So, once again
Hilary I remind you that the above comments are being made here FOR
YOUR BENEFIT and in hopes that you can _learn_ from them and figure
out what to do next. I'm not going to _tell_ you what to do next;
that is for you to figure out.
> > _IF_ (and only if) you can build a case that shows the landlord
> > callously disregarded your needs, IN SPITE OF your offering what would
> > have been a more reasonable accommodation, and instead he chose to
> > "Toss a Human Being Out in Favor of a Really Good Sound System" as you
> > say, THEN you may have built a case for punitive damages. �Good luck,
>
> Ok, so how would Hilary claim punitive damages?
> Wouldn't Hilary have to show that the building totally disregarded the
> law and her rights as a protected class member?
Pretty much so. But, I urge Hilary to read up on the actual law in
her jurisdiction regarding punitive damages in FHA cases, not to rely
on anything anyone here on MLM says.
> While a physician has certain ethical obligations, I have to ask, does
> a lawyer?
Sure. In the context of this discussion, we are not supposed to
vexatiously multiply or prolong litigation, and we are also compelled
by ethics not to mislead an unrepresented party about either the law
or the facts or the effect of the law on the facts. Which is one
reason I am constantly at pains to point out to Hilary that WE DON'T
KNOW all her facts and that only SHE can decide what to do, based on
her knowledge of those facts and based on her OWN legal research and
understanding as a pro se party.
> Sure, the lawyers here are trying to help and explain the legal
> system. They are not Hilary's lawyer so that certain ethics don't
> apply. �But even still, what should a lawyer say? Just answer the
> legal question?
if that's directed in part at me, I hope both you and Hilary realize I
have not been trying to sugar-coat anything. I hear what you
(Grendal) are saying about the risks of "enabling" a plaintiff who
really would be better served by taking an objective look at her case,
and about "selective listening" by the recipient of these MLM
comments. However, I remain convinced that, regardless of a person's
position in life or the status of their case, they are _better_ served
if they receive accurate information about what the Rules require,
what the substantive law requires, and about how to find what they
need to find as they go about doing their _own_ legal research, in
hopes they will ultimately, rationally, reach their OWN best decision
about what is best for them. Because, in the final analysis, no one
but that person himself or herself CAN make that decision, and no one
else can do what is necessary to follow the path in life that is best
for them. "The light bulb needs to really want to change."
So, all I've been trying to do, all these past months, is to answer
the specific questions Hilary and others raise, but in the context of
trying to help those who read my comments think about the larger
picture in which any legal case and the course of events leading up to
it should be viewed. Hopefully that is what you think a lawyer (even
one who is not representing that party) should do, since it is in fact
what I have repeatedly set out to do.
Mike Jacobs
> Would it be possible to set up some sort of a "contract" thing that says
> "if I'm awarded money above and beyond $X, it will go towards the Acme
> Trust Fund for Orphans and Widows of Left-Handed Gay Vets Who Were 'Born
> on the Fourth of July'" before even filing (or going to trial) where the
> person would be truly held to the 'it's not about the money'?
Such a thing is possible as part of a _settlement_ package - the
contract of settlement (entered either before or after suit is filed)
could specify who gets that part of the money, intstead of it all
going to the account of the plaintiff. I am not a tax lawyer and
cannot tell you if, frex, this would still be considered money going
_to_plaintiff_ for tax purposes, against which the plaintiff would of
course have a 100% charitable deduction (if the current tax laws allow
a single-year deduction in such a big amount - again, not my area) or
whether it would be a wash and wouldn't matter. But yes, it can be
done; virtually any kind of arrangement is possible as part of a
_settlement_, including promises from the defendant to do all _kinds_
of things that the court has NO POWER TO ORDER defendant to do.
It may also be possible to have such a binding contract even if it
does not completely settle the case, so that a trial is still
necessary as to some or all issues. Frex, sometimes the plaintiff
and defendant will enter a secret (from the jury, not from each other)
"high-low" settlement agreement in which they agree to submit all the
issues (both liability and damages) to the jury, but to place a
minimum floor on the plaintiff's recovery (he will get the "low"
amount even if the jury comes in with less, or with a defense verdict)
and also to place a maximum "cap" on the defendant's exposure (usually
but not always done in the context of the limits of an insurance
policy, so that the plaintiff will actually be paid no more than
policy limits even if the jury awards him a squillion-dollar
bellringer verdict). If the jury comes in someplace _between_ the
high and the low, that is the amount the plaintiff will get. Other
types of agreements may, frex, apportion the responsibilities among
multiple defendants, regardless of the percentage of fault the jury
may actually ascribe to each. The possible permutations are
essentially endless.
But, apart from an agreed settlement, the only thing any _judgment_
can do (apart from a defense verdict, where the plaintiff loses), as
noted in my previous post, is (1) in a case at law, the only available
remedy is an award of a specific dollar amount of damages to the
plaintiff herself, or (2) if a cash award would be inadequate to
restore plaintiff's rights, and if equity so requires, an equity court
may award prohibitory or mandatory injunctive relief which _orders_
the defendant to do something or refrain from doing something so long
as that thing IS WITHIN THE POWER OF THE COURT TO SO ORDER.\
Forcing a defendant to pay money to a certain charity, or forcing the
plaintiff to turn over part of her award to that charity, is not one
of those remedies that is within the court's power to order. So, the
only way to get that result would be by a settlement, which requires
_agreement_ of the parties, which normally can only be obtained if the
plaintiff convinces the defendant that she _is_ likely to win a large
wad of money if the case goes to trial. Which gets us back to our
starting point, that the case really _is_ all about money.
grendal
[SNIP]
> if that's directed in part at me, I hope both you and Hilary realize I
> have not been trying to sugar-coat anything. I hear what you
> (Grendal) are saying about the risks of "enabling" a plaintiff who
> really would be better served by taking an objective look at her case,
> and about "selective listening" by the recipient of these MLM
> comments. However, I remain convinced that, regardless of a person's
> position in life or the status of their case, they are _better_ served
> if they receive accurate information about what the Rules require,
> what the substantive law requires, and about how to find what they
> need to find as they go about doing their _own_ legal research, in
> hopes they will ultimately, rationally, reach their OWN best decision
> about what is best for them.
No, it wasn't directed towards you.
You've done an excellent job of balancing the law and showing the
difficulty of the case.
The problem I have is when you have people who are not familiar with
the FHA and have actually encouraged Hilary in pursuing her case.
I agree with you that if a person is reasonable, can comprehend the
law, be honestly objective and look at both sides of the case... then
they can make a rational decision. Unfortunately when you suffer from
clinical depression, you're not going to be objective or understand
everything around you. Your disease will distort your perception.
Hilary has formed an opinion that she was wronged and that the complex
is guilty of something. Hypersensitivity is one thing. The other parts
of the clinical depression make this worse. The total fixation on this
act isn't healthy. Hilary may be viewed as competent to stand trial in
a criminal case, however, someone with Clinical Depression really
isn't competent to manage their own case as pro se.
Back in '94, I got a call from my sister that my father was going to
have to go through radiation therapy. I flew home from Germany to take
care of him.
After the radiation therapy, while my father was in the hospital
recovering, one the oncologist residents, a fellow, came in to the
room and spoke with my father. I was there listening to what he was
saying. My father, a retired Radiologist got in a huff and said that
the resident didn't know what he was talking about. About 15 mins
later, one of my father's friends who was the head of their radiation
dept. stopped in to say hi. My father complained about the resident.
Outside, the doctor flagged down the resident, and the resident
repeated what he told my father. It was exactly what he said earlier,
no changes. The doctor said that he was correct and told the resident
not to worry. He then went in to the room, and he told my dad what he
found out. My father could accept the same exact information from his
friend, which he could not from the resident. The reason I think
about this and use it as an example, is that my father was a very
smart man. But due to his illness and his medications, he wasn't able
to clearly process information even though the person who was telling
him the information was competent and knew what he was talking about.
I'm not equating Hilary's condition to that of my father. I'm just
trying to give an example of why you can't always think of Hilary as
being competent to comprehend what she is being told. If you believe
that Hilary suffers from Clinical Depression then you can't treat her
as if she was 'normal'. Even giving all of the facts, doesn't mean
that Hilary is going to be capable of making a rational decision or
knowing what is best for herself.
Strictly as a lawyer, you are correct. Unless you've gone through
Clinical Depression, or know someone close to you who has, you can't
appreciate the longer term damage this case will have on Hilary.
Medically speaking, Hilary should never have been allowed to step in
to the court room and file a lawsuit pro se. But as you said, its
Hilary's choice.
The FHA is pretty straight forward, yet its also complex. With
respect to Hilary's case, the complex specializes in handling
handicapped and elderly residents. Their management and lawyers are
going to be familiar with the law and when they have to take action,
they will do so in compliance of the law. Could they have handled
things better? Maybe. But we don't have all of the facts...
Cy Pres
<im_g...@hotmail.com> wrote:
>On Nov 15, 12:13 pm, Mike Jacobs <mjacobs...@gmail.com> wrote:
>[SNIP]
>> if that's directed in part at me, I hope both you and Hilary realize I
>> have not been trying to sugar-coat anything. I hear what you
>> (Grendal) are saying about the risks of "enabling" a plaintiff who
>> really would be better served by taking an objective look at her case,
>> and about "selective listening" by the recipient of these MLM
>> comments. However, I remain convinced that, regardless of a person's
>> position in life or the status of their case, they are _better_ served
>> if they receive accurate information about what the Rules require,
>> what the substantive law requires, and about how to find what they
>> need to find as they go about doing their _own_ legal research, in
>> hopes they will ultimately, rationally, reach their OWN best decision
>> about what is best for them.
>No, it wasn't directed towards you.
>You've done an excellent job of balancing the law and showing the
>difficulty of the case.
>The problem I have is when you have people who are not familiar with
>the FHA and have actually encouraged Hilary in pursuing her case.
If this is not aimed at me, I honestly have no clue who you think has
"encouraged" Hilary to pursue her case. I have seen no people
engaging in this activity whatsoever. I believe that I have fairly
clearly stated that while I think her case may have merit (and whether
it does depends on the presence or absence of facts which Hilary has
not disclosed), it faces procedural hurdles that are going to be very
difficult for a pro se plaintiff to overcome. I am not certain about
the merits of the case as it exists, although I think enough has been
said about the state agency defendants to determine they were properly
dismissed from the case.
I do think, as a matter of public policy, that housing facilities for
people with disabilities should be capable of parity for people with
mental disabilities as well as physical disabilities. That may not,
however, actually be the law. It might not be possible to redress a
case like Hilary's under existing law, and courts may not be willing
to extend existing law to cover a case like this.
I do know, however, that people with PTSD often are hypersensitive to
sounds. This isn't a particularly rare symptom, especially with
veterans who have been subjected to loud sounds in extremely
distressing situations, and have these traumatic events brought back
vividly by the sort of sharp, sudden sounds that often occur in cities
and around people. It is unconscionable that we, as a nation, subject
military personnel to conditions like this and then, when they return
home after risking their lives on our behalf, we do not provide
doctors to treat their mental traumas or housing facilities to give
them some peace, when their salient symptoms include hypersensitivity
to sound. If such facilities don't exist already, they certainly
should in the future, and even non-military cases such as Hilary's
would benefit.
The problem with this kind of policy-based arguments for extension of
the law is they rarely are going to succeed at the trial court level,
as I have pointed out previously, is they are rarely going to succeed
at the trial court level. The trial court is simply going to see a
kind of case that they have never dealt with before and that nobody
else seems to have dealt with, either, and look for any reason to get
rid of it.
The only success is likely to occur at the appeals court level, or in
a state's Supreme Court, or in the Supreme Court of the United States.
Most of these courts are courts most litigants never see, since most
litigants exhaust their resources at the trial court level, or are not
willing to "roll the dice" at the appeals court level without any
guarantee of success.
Pro se litigants are generally out of luck after the trial court. This
is not to say that no pro se litigant has ever made a major change in
the law. Gideon v. Wainwright was a case taken up to the Supreme
Court by an indigent pro se litigant convicted and sent to prison
after being denied counsel at his criminal trial. His pencil-written
cert petition, on prison stationery, got its day before the Supreme
Court. However, the Court appointed counsel, Abe Fortas (subsequently
a Supreme Court Associate Justice appointed by LBJ before his own
personal problems forced his resignation).
The result of Gideon v. Wainwright and its progeny is the public
defender system available to indigent criminal defendants throughout
the country. Whatever the flaws of this system are, and they are
plenty, it means that nobody in this country goes to jail or prison,
because they are poor, without some form of legal representation.
In any case, I have certainly not encouraged Hilary to pursue her
case, and would agree with you to the extent that it is *possible*
that she would be better off dropping it, because of the ugly
experiences litigation always contains.
However, Hilary is a competent adult, and clearly an intelligent
person, whose decisions about what legal remedies she wishes to pursue
are entirely within her own discretion. You invade two professional
areas when you insist she has no case and shouldn't pursue it: you
assume the role of a psychiatrist in presuming that you have the
ability to gauge her mental state and determine whether or not she is
competent to make her own decisions; and further, you assume the role
of a lawyer, in telling her that her case has no legal merit when you
don't even know all the facts of it.
If you were actually either a lawyer or a psychiatrist, this could get
you hauled up on ethics issues. Since, as far as I know, you are
neither, it merely makes you look foolish.
>I agree with you that if a person is reasonable, can comprehend the
>law, be honestly objective and look at both sides of the case... then
>they can make a rational decision. Unfortunately when you suffer from
>clinical depression, you're not going to be objective or understand
>everything around you. Your disease will distort your perception.
Nobody has perfect perception. And further, to the contrary,
depressives have been shown to have *more* accurate perception about
some things than "normal" people. For example, in tests of how
accurately depressed people estimate other people's opinions of them,
depressives score much higher. "Normal" people tend to lie to
themselves about their level of social success, by comparison.
>Hilary has formed an opinion that she was wronged and that the complex
>is guilty of something. Hypersensitivity is one thing. The other parts
>of the clinical depression make this worse. The total fixation on this
>act isn't healthy. Hilary may be viewed as competent to stand trial in
>a criminal case, however, someone with Clinical Depression really
>isn't competent to manage their own case as pro se.
As someone who has suffered from clinical depression, I find your
characterization of depressed people offensive, frankly. There are a
lot of people who have suffered severe and long-lasting depression and
have nevertheless been successful professionals or even preeminent in
their fields. Depression, from the dysthmic to severe level, is
disproportionately common, for that matter, among practicing attorneys
and doctors.
I can see why you are unsympathetic to claims of discrimination by
people with some form of mental illness, because you apparently share
the same stereotyped attitudes that lead to discrimination.
I don't mean to overstate this. Attitudes like yours are very common,
and it is true that some mentally ill people really are "out of touch
with reality." Some mentally ill people engage in patently frivolous
and abusive litigation.
That said, I do agree that Hilary, perhaps from unfamiliarity with the
often harsh realities of legal procedures and the sometimes brusque
and rude behavior of attorneys, tends to interpret routine legal
events in an overly negative light, as if they are personal slights,
when they are either routine or only casually rude behavior. It's
already entirely bad enough getting an adverse ruling or other event
in a lawsuit, without magnifying it into an insult against one's
person.
Finally, while you may be correct about the actual chance of success
Hilary has, given the few facts we know and the procedural background
of the case, you just aren't the person to be telling Hilary what to
do, or what she'd be better off to do. She is the only person living
her own life, and has shown no sign at all of being incompetent to
decide that even though she might lose, she would rather try to
vindicate what she sees as her rights.
Even if she does lose, she might join with similarly-minded people and
pursue a legislative remedy that PTSD people have as much of a right
to housing as people disabled for some other reason.
While I may agree with you on the limited issue of whether her case is
likely to succeed, I do not agree with you that "she has no case" and
somehow MUST drop it, because she has some sort of mental illness and
is therefore incompetent to decide how to manage her own affairs. I
find that patronizing and insulting.
grendal
> On Nov 18, 10:53 pm, Cy Pres <c.p...@yahoo.com> wrote:
[SNIP]
> Putting that aside for the moment, visions of cases such as Gideon and
> dramas such as Philadelphia (with Tom Hanks) are the fuel of (mostly
> false) hopes of pro se litigants like Hillary. Giving underdog
> successes disproportionate "air time" (i.e., without devoting 90% of
> writing space to the underdog failures) creates unrealistic
> expectations. Grendal's point, as I understood it, was that Hillary
> -- who claims to suffer from depression, PTSD, and/or other mental
> disorders -- and people like her are especially susceptible to the
> influence of people who appear to have legal expertise.
>
>
Well, based on Hilary's posts, she has exhibited signs that are
characteristic of an individual who suffers from Clinical Depression
as well as PTSD. I'm not a Psychiatrist so I can't say that she has
been diagnosed, but that if she claims to have been diagnosed, I'll
take her at her word.
While I haven't yet responded to Cyprus' post (I wanted to think about
my response), I think that it is important to address the snippet from
his post.
" > The result of Gideon v. Wainwright and its progeny is the
public
> defender system available to indigent criminal defendants
throughout
> the country. Whatever the flaws of this system are, and they
are
> plenty, it means that nobody in this country goes to jail or
prison,
> because they are poor, without some form of legal
representation.
"
[Hope that the above quote formats the way I wanted it to....]
For some reason, Hilary has equated her case with that of individuals
facing incarceration and criminal charges.
I don't know where she got that idea, however discussing Gideon v.
Wainwright and the state of the public defender's office, when Hilary
is a pro se litigant in a civil court case where she is the plaintiff,
is highly inappropriate. I mean, what you say may be factual and
correct, however when put in to context, it has no bearing on Hilary's
complaint.
We all suffer from selective hearing at some point in our lives and
how much filtering occurs depends on the individual. With Clinical
Depression along with those who are taking psychotropic drugs (lets
leave it to prescribed medications) the amount of filtering and the
likelihood of misconception are higher. An example... The judge may
say '... I don't know why I'm seeing this case ...' . The judge may
have made that statement in the context of discussing the law. Hilary
may have viewed that as a personal attack. She had attributed emotions
and context to the statement that a normal person, or a lawyer, would
not have.
Its not that Hilary just sought information about the legal process,
but that she sought affirmation.
You could have spent a lot of time explaining why 90% of the pro se
litigants fail, and she would have ignored it. She would have found
the one voice which said that they went pro se and succeeded and that
depending on the case, a pro se plaintiff can win. A normal person
should then have considered if they had a case. Hilary would have
interpreted it to mean that she had a case and that its possible for
her to win. Its because of her illness that she develops a 'polarized'
view and things become black and white with no gray in between.
And to Cyprus' point, I'm not saying that it is one person and that
what they said wasn't factual, but that in context and with respect to
Hilary's case, it gave her a sense of false hope and misguidance.
I can't gauge the intent of the poster, however when you discuss law
which is not appropriate to the context, it can easily be
misinterpreted as being in context and thus giving the appearance of
encouragement.
> I have found from years of practice that it is a greater disservice to
> give a wronged person false hope than it is to tell her just to lick
> her wounds and move on with her life. Gideon is inapposite. Hillary
> is not cooling her heels in prison with nothing to lose by taking a
> crack at a pro se habeas petition. She has some amount of assets and/
> or income at risk, and her injury, whatever it is, does not come close
> to imprisonment in a state penitentiary. Nevertheless, she filed a
> civil lawsuit on VERY SLIM grounds (and I am being charitable) after
> having been told by a government agency that she has no case. She
> poked a sleeping bear with what she thinks is a high-power rifle, but
> is in reality a cap gun. If she retreats nice and easy, she may
> escape injury. But if she stands her ground, she will be mauled. The
> "assistance" she receives on m.l.m. amounts to the peanut gallery
> cheering her on for the sake of the spectacle. As far as I can tell,
> nobody here really believes she can kill the bear. So she isn't being
> helped, just goaded.
>
> And that's the point I took Grendal to be making.
First, I would point out that Hilary first filed a HUD complaint. It
was investigated, she appealed their findings, it re-affirmed their
initial findings. She then went on to talk to some lawyers, failing to
find one, she went ahead pro se and filed a suit against both the
complex and the state agency. The reason I point out this order of
events is that Hilary should have known that she was on very slim
ground and that she didn't have a case prior to filing pro se. Yet she
went ahead and filed suit not just against the complex, but against
the agency. In her mind, she made a 'rational' decision. To change
your analogy slightly, we're at the zoo, we walk up to the bear
exhibit, where we find Hilary already in the bear cage with the cap
gun, already taunting the bear.
Back to your point...
Yes, I agree with your post, but I don't want to equate m.l.m as a
peanut gallery cheering her on.
I mean that there are some posters who are well intentioned and
believed that they were helping her. Perhaps I'm being naive, but I am
not trying to make a blanket statement condemning those with good
intentions.
Having said that, I do know that some posters to m.l.m and maybe some
lurkers communicated with Hilary via e-mail. There's nothing wrong
with that, except that it could have been here that the 'goading' took
place. Misguided or not, Hilary had some strange legal theories that
she raised. Not sure if this was due to her own 'research' or someone
pointing her down the wrong path.
I mean how did she come to the conclusion that she should petition the
court for an attorney. When that failed with the first judge, she then
wanted to repetition the second judge.
How did Hilary come to equate her position of her 8th amendment right
(s) were being violated? (She was never incarcerated.)
Sorry to beat a dead horse, but with respect to Hilary, you can't
treat her as a normal person.
A Mich A is right that giving false hope is worse than telling someone
to walk away. With respect to Hilary, she has admitted that she's had
a higher level of anxiety, depression, and stress in pursuing this
case.
If/when it eventually ends, it will not have a good result for Hilary.
She will not have obtained her goal, and in addition to her emotional
state intensifying the depression, and stress, she will also go
through a period of frustration. She will also continue to fixate on
this issue. There's a high probability that without counseling she
will continue to spiral downward and will approach other life events
in a more negative fashion. Add to this that because of Hilary's
economic situation, there's a high probability that she will not get
the treatment that she needs. Definitely not good.
We as rational adults should have taken in to consideration her mental
state when giving advice. That's the point.
Sorry for the rant. I'm the type of guy who believes that if a train
wreck can be avoided, I should help, not sit by and watch.
I think that one of the lessons learned is that we should try and
consider the emotions and mental state of the poster when replying to
a question.
-G
Cy Pres
<miatt...@gmail.com> wrote:
>I have found from years of practice that it is a greater disservice to
>give a wronged person false hope than it is to tell her just to lick
>her wounds and move on with her life. Gideon is inapposite. Hillary
>is not cooling her heels in prison with nothing to lose by taking a
>crack at a pro se habeas petition. She has some amount of assets and/
>or income at risk, and her injury, whatever it is, does not come close
>to imprisonment in a state penitentiary.
I think it's really up to her to decide how seriously she takes her
injury.
What is not up to her, of course, is whether it is an injury for which
she can be compensated.
>Nevertheless, she filed a
>civil lawsuit on VERY SLIM grounds (and I am being charitable) after
>having been told by a government agency that she has no case. She
>poked a sleeping bear with what she thinks is a high-power rifle, but
>is in reality a cap gun. If she retreats nice and easy, she may
>escape injury. But if she stands her ground, she will be mauled. The
>"assistance" she receives on m.l.m. amounts to the peanut gallery
>cheering her on for the sake of the spectacle. As far as I can tell,
>nobody here really believes she can kill the bear. So she isn't being
>helped, just goaded.
>And that's the point I took Grendal to be making.
I believe the point is incorrect. Further, I believe the implication
that mental illness equals incompetence is insulting and
condescending. Moreover, numerous people, particularly Mike Jacobs,
have given her very realistic descriptions of what the law is, and
what the actual procedures are, and offered no unrealistic hope.
It is quite clear that Hilary is someone who makes her own decisions
as to what to do, and she has clearly (at least for the moment)
disregarded the advice of pretty much everyone who has informed her
that the chances of success are slim, and would be slim even with a
stronger case. If anyone has said "you have a great case and are sure
to prevail," I'd really like a single quote to that effect from, well,
anyone AT ALL.
I will note, also, that my mention of Gideon v. Wainwright occurred in
the context of nothing that pro se litigants, in general, face extreme
disadvantages. I did, in fact, list it as an exception, but one that
shows it is at least *possible* to prevail, or even to extend existing
law, in that context. My endorsement of the concept of Gideon was not
a statement that, in fact, we have actually reached the Promised Land.
I stated that indigent criminal defendants are not jailed "without
some form of legal representation." If I'd meant to say "without the
reincarnation of Clarence Darrow by their side," I'd have said that. I
do not believe, however, it is as bad as Chris Rock's
characterization: "If you can't afford an attorney, we will provide
you with the dumbest lawyer on earth." Sometimes it approaches that,
though.
However, in any case, to clarify, in case there is anyone who hasn't
gotten what *I* have said about Hilary's case: while I am *not*
joining in the chorus of "you have no case, you have no case, you have
no case" mumblers and amateur psychiatrists, since I don't believe I
really know enough to say that for sure, I am *not* recommending
continuing it. I believe the closest I've come to that is noting that
sometimes state court claims are easier to pursue, which is hardly
endorsing her cause of action as likely to succeed, even if she had
aggressive counsel.
If you are trying to claim I am egging her on, I disagree. I've done
nothing of the sort, and I've seen nobody else do anything of the sort
either.
I also am not going to discount your comment about potential
sanctions, and Hilary should take this into account, as well as the
potential of court costs, and base her decision on that. I have no
idea what her assets are, what her income is, and have no idea of what
the practicalities of her situation are.
grendal
> I believe the point is incorrect. Further, I believe the implication
> that mental illness equals incompetence is insulting and
> condescending. Moreover, numerous people, particularly Mike Jacobs,
> have given her very realistic descriptions of what the law is, and
> what the actual procedures are, and offered no unrealistic hope.
>
Clearly you didn't understand the point, or the law which is at the
heart of the case.
If you can see and treat Hilary as a 'normal' individual with respect
to her mental health and capabilities, then she clearly isn't a member
of the protected class.
This is the catch-22 Hilary faced as a pro se litigant.
With respect to AMA and Mike, they weren't part of the problem. And
again it wasn't any one individual.
Hilary is a member of the protected class. Her posts are a clear
enough indicator to this fact.
So to discount her illness is more of an insult and goes to prove one
of Hilary's positions that many individuals don't fully understand her
disability.
I would suggest that instead of citing cases of 'victorious pro-se
criminal defendants', focus on answer the two basic questions:
1) Did the Apartment complex fail to provide a reasonable
accommodation?
2) When is a 'reasonable accommodation' not a reasonable
accommodation?
Cy Pres
<im_g...@hotmail.com> wrote:
>On Nov 19, 9:32 am, A Michigan Attorney <miattor...@gmail.com> wrote:
>For some reason, Hilary has equated her case with that of individuals
>facing incarceration and criminal charges.
Really?
>I don't know where she got that idea, however discussing Gideon v.
>Wainwright and the state of the public defender's office, when Hilary
>is a pro se litigant in a civil court case where she is the plaintiff,
>is highly inappropriate.
Except that she didn't even bring it up. I brought it up in the
context of discussing how most pro se litigants have a very low chance
of prevailing in cases which turn on complex public policy questions,
and then gave a "but see" example. And then I qualified *that* by
pointing out that even though Gideon made it to the Supreme Court pro
se, he was represented by appointed counsel, Abe Fortas, subsequently
himself a Supreme Court Justice.
You're arguing with a straw man and clearly don't understand why I
even brought up the case. It certainly isn't for the proposition
you're discussing.
>How did Hilary come to equate her position of her 8th amendment right
>(s) were being violated? (She was never incarcerated.)
I agree with you on the Eighth Amendment issue, if she really did say
that. If so, I missed it.
>Sorry to beat a dead horse, but with respect to Hilary, you can't
>treat her as a normal person.
So how should you treat people with any kind of mental condition? Like
incompetent freaks who can't be trusted with factual information?
And you don't see anything wrong with your prejudice against people
with mental illnesses?
>A Mich A is right that giving false hope is worse than telling someone
>to walk away. With respect to Hilary, she has admitted that she's had
>a higher level of anxiety, depression, and stress in pursuing this
>case.
I've seen anything *but* false hope out of her. Almost all of her
posts are about how she's virtually certain she's going to lose, that
she is pretty sure the judge is going to make an adverse ruling, etc.
That certainly doesn't sound like irrational exuberance to me. If you
can think of one thing she's said or anyone else has said that amounts
to telling her that her lawsuit is the best idea since sliced bread,
I'd really like to see it.
Where I think her estimations are incorrect, however, is assuming some
kind of ulterior motive on the part of the court, which is generally
just doing its job.
>If/when it eventually ends, it will not have a good result for Hilary.
>She will not have obtained her goal, and in addition to her emotional
>state intensifying the depression, and stress, she will also go
>through a period of frustration. She will also continue to fixate on
This is what is known as pure speculation. She could instead,
assuming an adverse outcome, decide the litigation route isn't going
to solve the problem and get involved with an activist organization
pushing for parity for people with mental illnesses through
legislation.
Or she could be satisfied that she at least tried to do something.
>this issue. There's a high probability that without counseling she
>will continue to spiral downward and will approach other life events
>in a more negative fashion. Add to this that because of Hilary's
So says you. Pure ipse dixit.
>economic situation, there's a high probability that she will not get
>the treatment that she needs. Definitely not good.
If she's impoverished enough, she qualifies for Medicaid, which is not
a perfect situation, but actually better than the situation of many
people who had a modest income but chronic illness, who can't afford
treatment and can't qualify for Medicaid.
>We as rational adults should have taken in to consideration her mental
>state when giving advice. That's the point.
I'm not a psychiatrist, and if you were, frankly you'd be bordering on
malpractice.
Cy Pres
<im_g...@hotmail.com> wrote:
>On Nov 20, 11:48 am, Cy Pres <c.p...@yahoo.com> wrote:
>> I believe the point is incorrect. Further, I believe the implication
>> that mental illness equals incompetence is insulting and
>> condescending. Moreover, numerous people, particularly Mike Jacobs,
>> have given her very realistic descriptions of what the law is, and
>> what the actual procedures are, and offered no unrealistic hope.
>Clearly you didn't understand the point, or the law which is at the
>heart of the case.
>If you can see and treat Hilary as a 'normal' individual with respect
>to her mental health and capabilities, then she clearly isn't a member
>of the protected class.
That's nonsensical. By that token, you can't treat someone in a
wheelchair as a "normal" person, but instead should treat them as an
inferior being of some sort.
Further, you're just wrong about how the term "handicap" is
interpreted by courts. You seem to believe it requires absolute
inability to do anything at all. If you were talking abou the
definition of "disability" under something like the Social Security
Act, where it actually does mean inability to perform substantial
gainful activity, you might have a point.
In fact, you need not even have a disability at all, as that term is
defined. You could even fit into the protected class simply if you
are perceived as having a disability. Courts have treated the purpose
of the antidiscrimination provisions of the FHA as protecting not some
narrow class of persons, but of protecting against a certain class of
*motivation* in making decisions about housing.
>This is the catch-22 Hilary faced as a pro se litigant.
This is purely a practical matter, not a matter of statute. It is
going to be very difficult to be a competent practitioner and
simultaneously allege a lack of capacity sufficient to add up to the
protected condition.
Mike Jacobs pointed this out a lot more capably than you, and without
being insulting and bigoted about it.
grendal
> On Sat, 21 Nov 2009 09:21:26 -0800 (PST), grendal
>
> >If you can see and treat Hilary as a 'normal' individual with respect
> >to her mental health and capabilities, then she clearly isn't a member
> >of the protected class.
>
> That's nonsensical. �ｿｽBy that token, you can't treat someone in a
> wheelchair as a "normal" person, but instead should treat them as an
> inferior being of some sort. �ｿｽ
>
Sigh.
No its not.
You don't treat someone who is handicap as being normal. You have to
recognize their handicap and do not let it interfere with your
relationship.
My wife has a co-worker who's in a wheelchair due to his MS. We all
recognize his MS, we help him when he needs it. It would be insulting
to go invite him out to a pick up game of hoops. Its not insulting for
his coworkers helping him transfer to his other wheelchair and helping
him down to his car service. Its not insulting to invite him to come
by and work out in the weight room with us.
> Further, you're just wrong about how the term "handicap" is
> interpreted by courts. �ｿｽYou seem to believe it requires absolute
> inability to do anything at all. �ｿｽIf you were talking abou the
> definition of "disability" under something like the Social Security
> Act, where it actually does mean inability to perform substantial
> gainful activity, you might have a point.
>
LOL... you sure about that?
I suggest that you actually review the facts before jumping to a
conclusion...
http://www.justice.gov/crt/housing/housing_coverage.php
"The Fair Housing Act prohibits discrimination on the basis of
disability in all types of housing transactions. The Act defines
persons with a disability to mean those individuals with mental or
physical impairments that substantially limit one or more major life
activities. The term mental or physical impairment may include
conditions such as blindness, hearing impairment, mobility impairment,
HIV infection, mental retardation, alcoholism, drug addiction, chronic
fatigue, learning disability, head injury, and mental illness. The
term major life activity may include seeing, hearing, walking,
breathing, performing manual tasks, caring for one's self, learning,
speaking, or working. The Fair Housing Act also protects persons who
have a record of such an impairment, or are regarded as having such an
impairment. Current users of illegal controlled substances, persons
convicted for illegal manufacture or distribution of a controlled
substance, sex offenders, and juvenile offenders are not considered
disabled under the Fair Housing Act, by virtue of that status. "
Since I don't know how it will look when formatted, the key
phrase ..."that substantially limit one or more major life
activities." .
That the key phrase, especially when it comes to looking at mental
disabilities in terms of being recognized as a member of the protected
class.
And yes, please note that this is a hurdle that one must face when
dealing with an FHA lawsuit. The burden of proof, with respect to
showing that the plaintiff is a member of the protected class is the
plaintiff's.
With respect to PTSD, just because you have the diagnosis doesn't mean
you're automatically a member. I have a friend who had his humvee
blown up from under him. He was lucky, I think he had some minor
shrapnel, hearing loss and a concussion. Also being on patrol where
the enemy could blend in with civilians didn't help either. He's been
diagnosed with PTSD, however he can still function and has refused to
accept any partial disability. He would not be a member of the
protected class because his mental illness doesn't meet the level of
'' ... substantially limiting one or more major life activities.".
With respect to clinical depression, if diagnosed by a board certified
psychiatrist, you will still be challenged. Based on their testimony
the courts will have to decide if you are a member of the protected
class. If the judge agrees that you are suffering from clinical
depression, then you would be a member of the class.
Going pro se as the plaintiff would bring rise to the argument that if
you are capable of doing it, then your level of mental illness fails
to meet the standard as set by the law. Hence the catch-22. The
defense in their response to the complaint will deny that you are a
member of the protected class and will bring this up as a potential
argument. REMEMBER: Its the judge who decides if you truly are a
member of the protected class. Just because you make that claim
doesn't mean that you are and deserve the protection under the Fair
Housing Act.
That's the law.
> In fact, you need not even have a disability at all, as that term is
> defined. �ｿｽYou could even fit into the protected class simply if you
> are perceived as having a disability. �ｿｽCourts have treated the purpose
> of the antidiscrimination provisions of the FHA as protecting not some
> narrow class of persons, but of protecting against a certain class of
> *motivation* in making decisions about housing.
>
Huh?
Read what I wrote above.
The ADA and FHA were written specifically broad in terms of stated
language because they didn't want to have to rewrite it for every
potential disease that may be discovered. They don't specifically list
MS, Lou Gerhig's disease, and more than a dozen neurological diseases
which in their end stages would make a person a member of the class.
Its the court's interpretation of the law and the facts presented in
court that will determine if the specific plaintiff is truly a member.
I'm not going off on a tangent and bring in the other aspects of FHA
because we're dealing strictly with Hilary's case which is focused on
mental illness. You constantly bring in other things that are
irrelevant and it would be best served if you try and keep on topic.
> >This is the catch-22 Hilary faced as a pro se litigant.
>
> This is purely a practical matter, not a matter of statute. �ｿｽIt is
> going to be very difficult to be a competent practitioner and
> simultaneously allege a lack of capacity sufficient to add up to the
> protected condition.
>
Practical matter?
Hmmm, I would suggest you look at the law before making that
assumption. Your interpretation on the law has been wrong on a lot of
levels.
Look I'll give you an example of why your logic does fly...
A woman lives in a condo building that is pet friendly. She wants to
change the rules to prohibit dogs over 20 lbs because she claims that
she's terrified of big dogs. She threatens the HOA with a FHA lawsuit
because she claims that she is a member of the protected class. She
offers a reasonable accommodation that the current dog owners are
grandfathered in and that any new dogs in the building has to be 20lbs
or less.
Using your logic, she suffers from a mental illness and she claims
that because of her illness she can't live in the building and thus
she's entitled to a reasonable accommodation.
Fortunately the law views things differently. Having a phobia of big
dogs is not a mental illness that meets the level of protection under
the FHA.
Did this really happen? Yes.
> Mike Jacobs pointed this out a lot more capably than you, and without
> being insulting and bigoted about it.
Well Mike is a lawyer and part of his job is being a word smith. I'm a
software engineer and part of my job is to be frank, and to the point.
(KISS)
Also, I live with someone who suffers from Clinical Depression and
have had 5 years of learning how to deal with her illness. I've
personally had to deal with HUD, investigating agencies, and a lawsuit
involving the FHA and HOAs. Can you say the same? Am I bigoted? Only
to those who continually show their stupidity. Hilary isn't stupid,
she just didn't know what she was getting herself in to when she
started this whole thing. Hilary did what she thought was right. Her
only sin was that she didn't take the time to look at her situation
from an objective viewpoint. The rest was due to her illness.
The one issue that we really didn't discuss besides their qualified
immunity was Hilary's complaint against the state agency. Even if they
didn't have qualified immunity, Hilary didn't raise even a prima facie
case. Her complaint was that they were rude and didn't understand her
illness. If you understood her illness then you'd understand why I
took as strong a stance as I did.
I think its insulting to not recognize one's illness and to ignore it.
I think its insulting to give false hope to someone by continuing to
point to irrelevant legal cases and pointing out that sometimes a pro
se plaintiff can win. (Ignoring the facts of the OP's case)
As I said before, you weren't the only one who was doing Hilary a
disservice. There were others, some intentionally obtuse, others who
focused on answering her specific question, without putting it in to
context.
We all can't be as polished and Mike Jacobs.
Mike
> Forcing a defendant to pay money to a certain charity, or forcing the
> plaintiff to turn over part of her award to that charity, is not one
> of those remedies that is within the court's power to order. So, the
> only way to get that result would be by a settlement, which requires
> _agreement_ of the parties, which normally can only be obtained if the
> plaintiff convinces the defendant that she _is_ likely to win a large
> wad of money if the case goes to trial. Which gets us back to our
> starting point, that the case really _is_ all about money.
Well, yeah, pretty much all cases (except for injunctions) do come down
to "it's all about the money" but I was basically trying to come up with
a way to have a case where "it's all about making HIM pay the money" and
not so much about "it's all about ME receiving the money." I.e.
punishing the defendant without the plaintiff profiting in the process.
Sometimes the plaintiff really does "just want the satisfaction of
seeing him pay."
Mike
Cy Pres
<im_g...@hotmail.com> wrote:
>> Further, you're just wrong about how the term "handicap" is
>> interpreted by courts. �You seem to believe it requires absolute
>> inability to do anything at all. �If you were talking abou the
>> definition of "disability" under something like the Social Security
>> Act, where it actually does mean inability to perform substantial
>> gainful activity, you might have a point.
>LOL... you sure about that?
>I suggest that you actually review the facts before jumping to a
>conclusion...
"LOL." Good response. I suggest that you actually review the LAW
before making legal statements that are abject nonsense, and instead
of quoting third party sources, try citing specific cases where courts
have actually *interpreted* and carried out the language you cite a
third party source about, which only describes the law in the vaguest
possible terms. Let's start with the statute itself:
"(h) "Handicap" means, with respect to a person--
(1) a physical or mental impairment which substantially limits one
or more of such person's major life activities,
(2) a record of having such an impairment, or
(3) BEING REGARDED AS HAVING SUCH AN IMPAIRMENT[.]" 42 USCS � 3602
Did you think I was making that up? Why would I do that?
>Since I don't know how it will look when formatted, the key
>phrase ..."that substantially limit one or more major life
>activities." .
>That the key phrase, especially when it comes to looking at mental
>disabilities in terms of being recognized as a member of the protected
>class.
>And yes, please note that this is a hurdle that one must face when
>dealing with an FHA lawsuit. The burden of proof, with respect to
>showing that the plaintiff is a member of the protected class is the
>plaintiff's.
Of course it is. It is so with nearly any such statute. But it can
be met, as the law clearly states, without even actually having a
handicap itself.
>> In fact, you need not even have a disability at all, as that term is
>> defined. �You could even fit into the protected class simply if you
>> are perceived as having a disability. �Courts have treated the purpose
>> of the antidiscrimination provisions of the FHA as protecting not some
>> narrow class of persons, but of protecting against a certain class of
>> *motivation* in making decisions about housing.
>Huh?
>Read what I wrote above.
Please read the actual law and its legislative history, and
familiarize yourself with the policy justifications for
antidiscrimination laws in general. Then maybe we could have an
actual discussion about it.
grendal
> Please read the actual law and its legislative history, and
> familiarize yourself with the policy justifications for
> antidiscrimination laws in general. �Then maybe we could have an
> actual discussion about it.
Huh?
This is the first paragraph of what you cut and pasted:
"> (1) a physical or mental impairment which substantially limits
one
> or more of such person's major life activities,"
What is meant by this?
I posted it before, however you seemed to not comprehend the important
of the phrase 'substantially limits'.
If you are pursuing an FHA case, then you have to show that your
mental illness meets this requirement.
If you bothered to read my example of a woman who wanted to ban dogs
over 20lbs because of her fear of large dogs, you would understand why
her argument failed.
The burden is on the plaintiff to show that they are a member of the
class.
AND LETS BE CLEAR: Just because you claim to be a member of the class,
outside of a 12(b)(6) argument, you are going to have to show it to be
true.
If you bothered to pay attention, the only mental health argument that
you could make which would guarantee protection is Clinical
Depression. Even then, you're going to have to prove that you do
indeed suffer from Clinical depression, or did suffer from clinical
depression.
So when you sue under the FHA and act 'pro se', you open the door to
the question of if your mental health issue rises to the level that
would make you a member of the protected class. That is an argument
that the defense will/should raise.
I don't know what it will take for you to comprehend the facts.
Hilary isn't going to find a lot of case history, or any real relevant
case history because most FHA cases are either dismissed or settled
before going to trial.
While you tend to focus on paragraph 3, you're missing the point laid
out in paragraph 1.
I bet you'd champion a blind man's crusade against a bill board he
thought distasteful.
Cy Pres
<im_g...@hotmail.com> wrote:
>On Nov 25, 11:38�am, Cy Pres <c.p...@yahoo.com> wrote:
>
>> Please read the actual law and its legislative history, and
>> familiarize yourself with the policy justifications for
>> antidiscrimination laws in general. �Then maybe we could have an
>> actual discussion about it.
>Huh?
This is becoming increasingly tiresome, as I explain the actual law,
and you ignore it.
>This is the first paragraph of what you cut and pasted:
>"> (1) a physical or mental impairment which substantially limits
>one
>> or more of such person's major life activities,"
>What is meant by this?
>I posted it before, however you seemed to not comprehend the important
>of the phrase 'substantially limits'.
Why did you snip the part of the law where I substantiated my claim
that one does not need to claim such a disability to make out an FHA
claim? I put it in all capital letters, in the hopes that I might
attract your attention to it, but you appear compelled to pretend it
isn't there in the statute.
---
(h) "Handicap" means, with respect to a person--
(1) a physical or mental impairment which substantially limits one
or more of such person's major life activities,
(2) a record of having such an impairment, OR
(3) BEING REGARDED AS HAVING SUCH AN IMPAIRMENT,
42 USCS � 3602
---
The relevant federal regulation further elaborates on the "regarded
as" language:
---
(d) Is regarded as having an impairment means:
(1) Has a physical or mental impairment that does not substantially
limit one or more major life activities but that is treated by another
person as constituting such a limitation;
(2) Has a physical or mental impairment that substantially limits one
or more major life activities only as a result of the attitudes of
other toward such impairment; or
(3) Has none of the impairments defined in paragraph (a) of this
definition but is treated by another person as having such an
impairment.
24 C.F.R. � 100.201
---
The point of this is that the courts have interpreted the substantive
provisions of the Fair Housing Act relating to handicaps very broadly.
For example, the category of individuals having a "handicap" in civil
rights law has been held in many cases to cover a broad variety of
individuals, including people who are not "handicapped" or "disabled"
in any medical sense of the word, such as people who are gay and
therefore perceived as having AIDS, disfigured people who are
therefore seen as being incapable of working, obese people who
similarly have been perceived as likely to become ill, and therefore,
seen as having a disability.
Please try reading the actual law, as I have, as well as actual cases
in which it has been interpreted, then perhaps you can engage in more
substantive discussion of it than "Huh?" and "LOL."
As for me, I believe I am through "discussing" it with you, however.
grendal
> Please try reading the actual law, as I have, as well as actual cases
> in which it has been interpreted, then perhaps you can engage in more
> substantive discussion of it than "Huh?" and "LOL."
>
> As for me, I believe I am through "discussing" it with you, however.
The reason I post LOL because while you claim to read the law, I
happened to have lived through an FHA case which involved Clinical
Depression.
Unlike you, I understand Hilary's position and the damage that you
have caused. (Along with others)
Sure your posts may have contained factual information, however they
were irrelevant and gave false hope to Hilary.
While you attack me and claim that I'm a bigot and condescending
toward Hilary, you lack the basic understanding of Hilary's illness as
well as the law and how the courts actually interpret the law. When
you know you have a strong case and that you can crush your opponent,
yet you turn away from the case because you know the damage it can
cause someone you love, and the permanent damage that could occur,
then come talk to me.
While you focus on paragraph 3, you fail to comprehend the meaning in
paragraph 1 which is damning to anyone who wishes to raise an ADA or
FHA case based on mental health grounds.
I don't wish to be condescending towards you, but I suggest that you
actually try and think before you post. Hopefully you will pay
attention because this is how the law really works.
ADA and FHA cases are an uphill battle, especially for those based on
mental health issues. It is the burden of the plaintiff who raises the
FHA or ADA to show that they are a member of the class. (Thats the
first hurdle) If you paid attention to the first paragraph of what you
cut and paste, you would have understood that the law sets a high bar
or threshold that the plaintiff must meet when showing that their
mental health issue is deserving of the protection.
I've already posted this ad nauseum, yet you seem to gloss over this
simple but relevant fact. Here it is one last time....
"JUST BECAUSE YOU HAVE A MENTAL HEALTH ISSUE, IT DOES NOT MEAN YOU'RE
A MEMBER OF THE PROTECTED CLASS".
Go back and read the first paragraph. The mental health issue must
substantially limit your life activities. Now go look up the
definition of Clinical Depression. If you truly suffer from Clinical
Depression, and you have been diagnosed by a Psychiatrist for Clinical
Depression, you are going to be a member of the protected class. It is
the *only* mental health issue that by definition meets the burden set
by the law. (Both FHA, ADA and their state and local derivatives.) Oh
yes, you can find state and local laws/ordinances which re-enforce the
law under both of these federal acts. (You did do your homework,
right?)
Any argument you try to make beyond that point is a waste of time and
irrelevant. Just as your insistence that a criminal case that talks
about a pro se defendant being denied his rights has anything to do
with Hilary's case. Hilary was never incarcerated nor was her 8th
amendment rights violated.
Its sad that while you've been admonished, you still lack the
comprehension of the damage you've caused. Its pathetic that while you
view yourself the champion of rights, you lack the common sense to
understand that the individual is not only not mentally incapable of
representing herself, but that in encouraging her and providing her
with false hope, she did more damage to herself.
You want to talk to the law, specifically Hilary never had a case. The
law states that the building complex has to make a reasonable
accommodation. They did. Hilary wasn't prepared for it and that is
what caused her damage. Hilary and her use of colorful language put
herself in an indefensible situation. Since you want to research the
law, for Hilary's argument to make sense, the question which had to be
answered, was ..."When is a reasonable accommodation, not
reasonable?".
Answer that question and then you get another question... "Did the
actions taken by the building show either discrimination against
Hilary, under the FHA, or were there circumstances which made the
immediate removal of Hilary, against her will a necessity?"
Was there a reasonable belief that allowing Hilary to live in an
environment that she raised in her claim, represented a real and
immediate threat to her health? If so, what then were the legal
liabilities that the complex faced by not removing her from the
threat?
On Hilary's move in form, she wrote down that she was diagnosed with
Clinical Depression. Do I need to explain the realities on the term
'suicidal' ?
But you and others never considered that.
If you bothered to put things in to context, you'd have considered
that the complex is used to dealing with people who have mental health
issues. That they have lawyers who are familiar with the FHA. That
they would not act in a manner that would expose them to more
liability.
Instead, you wish to pretend to play lawyer, you have to consider your
audience.
You're right. this is pointless. You'll never learn. But one always
hopes that months from now, this starts to sink in.
And this isn't only directed to you but to the others who don't take
in to consideration the poster's position.
Bob
<im_g...@hotmail.com> wrote:
>The mental health issue must
>substantially limit your life activities.
Not plural. One life activity is enough.
>If you truly suffer from Clinical
>Depression, and you have been diagnosed by a Psychiatrist for Clinical
>Depression, you are going to be a member of the protected class. It is
>the *only* mental health issue that by definition meets the burden set
>by the law.
To qualify as a disabled individual you must have an impairment
(physical or mental) that substantially limits one or more life
activities. Clinical depression may be a mental impairment, but a
plaintiff would still have to prove he or she is substantially limited
by that impairment in one or more life activities. The plaintiff does
not automatically qualify as a disabled individual just because he or
she is diagnosed with clinical depression. Maybe you have some
authority to the contrary? I think you're confusing impairment with
disability.
In any event, Hilary alleges she suffers from PTSD, not clinical
depression.
>You want to talk to the law, specifically Hilary never had a case. The
>law states that the building complex has to make a reasonable
>accommodation. They did.
What was the accommodation (reasonable or not) the landlord made?
Letting her out of her lease?
>On Hilary's move in form, she wrote down that she was diagnosed with
>Clinical Depression.
Where do you get that from?